Turkey's first regulation for Islamic Finance was realized during the 1980s, during a period of liberalization as part of a plan to attract foreign direct investments. Interest free banking was introduced with the legalization of "special finance houses" which did not possess bank status and therefore did not benefit from banks' privileges.
The Islamic Finance sector kept evolving steadily in the 1980s and 1990s with Arab Gulf investors setting up finance houses and commencing lending activities, accommodating mainly specific religious clientele.
The leap for interest free banking came after the 2001 economic crisis. Banking finance legislation went through a major overhaul after the crisis. A union was formed to provide a certain level of state control and support for special finance houses. 2006 saw the introduction of Banking Law No. 5411, which legitimized participation banking and provided insurance through the Savings Deposit Insurance Fund for participation deposits. Along with these changes, the special finance houses union became the Participation Banks Association of Turkey ("TKBB"), which sets forth the ethical, professional principles for participation banks. All participation banks had to be a member of TKBB. The following years saw a rapid increase in participation banking and the 2008 global crisis highlighted the need for more stable financing. In line with the government's support of Islamic Finance and interest free finance instruments, the World Bank Global Islamic Finance Development Center was launched on the premises of the Istanbul Stock Exchange in late 2013.
Sukuk Financing
Turkey had various previous experiences with interest free financing in the form of profit-loss sharing certificates and real estate certificates mainly used for the financing of large infrastructure and construction projects. The issuance of sukuk was initially regulated with the Capital Markets' Board ("CMB") Communiqué Series III, No. 43 on Lease Certificates and Asset Lease Companies ("Communiqué Series III, No. 43") in 2010. Communiqué Series III, No. 43 regulated lease certificate (sukuk) issuance in a broad manner without specifics and several issuances were realized under it. In 2013, it was abolished by the Communiqué Series III, No. 61 on Lease Certificates ("Communiqué"). In 2012, Law No. 6327 was introduced allowing for the Undersecretary of Treasury to issue sovereign lease certificates. Statistics of the Organization of Islamic Cooperation indicate that Islamic banking in Turkey has not received the same level of interest as compared to other Muslim countries and is far from saturation. As such, the sukuk market is yet to develop. In fact, the first sovereign sukuk issuance was realized in August 2013 with significant over-subscription closing at USD 8 billion which shows huge demand for sukuk.
Legal Framework
As is known, sukuk holders obtain a partial ownership over a specific asset enjoying the profit that such asset generates and the proceeds from the sale, if sold.
The Communiqué introduced five types of lease certificates consisting of certificates based on ownership (ijara sukuk), management (musharakah sukuk), trading (murabaha sukuk), partnership (mudarabah sukuk) and engineering, procurement and construction (EPC) contracts (istisna sukuk) or through the combined use of these different types. Yet lease certificates that may be issued are not limited to these, as the CMB is receptive to novel instruments.
The legislation also regulates the establishment and management of asset leasing corporations ("ALC") and their capacities. ALCs may issue more than one lease certificate at a time and may issue for companies that are not the originating company.
ALCs may be established by banks, intermediary institutions, listed real estate investment trusts, public corporations with an average market value above TRY 1 billion and average market capitalization over TRY 250 million, partnerships where the Treasury holds 51% and more shareholding.
The board of directors of the ALC is liable for failure to collect the proceeds obtained from the rights and assets as well as to make payment to lease certificate holders pro rata their share as per their lease certificate.
The Communiqué regulates the issuance of lease certificates in a broad manner, leaving space for interpretation and practice. As per the Communiqué, real persons or legal entities execute a written agreement, indicating their intention to pool their properties to establish the originating institution. The originating institution transfers assets and rights to the ALC for the issuance of ownership-based lease certificates, or to the companies incorporating the ALC that manage the assets or rights on behalf of the ALC in the issuance of management agreement-based lease certificates. The ALC serves as the special purpose vehicle to which the assets or rights are transferred or leased.
The characteristics of each type of lease certificate are as follows:
- Ownership based lease certificates are issued to provide financing for the acquisition of the rights and assets by the ALC from the originating institution for the purposes of leasing to the originator or third parties or management on behalf of the ALC.
- Lease certificates backed by management contracts are issued so as to transfer the proceeds generated by managing the assets or rights owned by the originating institution to the ALC.
- Lease certificates backed by trading are issued for proceeds generated from the sale of assets and rights on deferred basis in order to finance the acquisition of such asset or right by the ALC.
- Lease certificates backed by a partnership are issued for providing financing to enable the ALC to be a shareholder of the joint-venture.
- EPC based lease certificates are issued to finance the realization of the relevant work for which the ALC shall be party to the EPC contract as well.
Assets and rights included in the portfolio of an ALC cannot be disposed of until the redemption of lease certificates, for any purpose other than collateralization to the benefit of lease certificate owners, even in the case of transfer of management or supervision of the ALC to public authorities. Accordingly, its assets cannot be pledged or attached, or be subject to interim injunction in favor of third parties or attached even for the collection of public receivables, or included as part of an estate in the case of bankruptcy. The ALC cannot conduct any activities other than those related to the issuance of lease certificates.
Risk Management
Apart from financial risks, a lease certificate issuance may bear operational risks in respect of the management of the rights and assets that are subject to the lease certificate and regulatory risks depending on the location of the issuance.
The Communiqué explicitly prohibits the attachment, pledge or otherwise collateralization of the assets subject to sukuk in favor of third parties in a manner that may be detrimental to the rights of the certificate holders. Although this provision does mitigate a major legal risk that may occur on the part of the investors, it is not clear which party will bear the consequences. Operational risks are covered in terms of collection and distribution of proceeds.
Another issue that bears importance is compliance with Sharia rules. Sharia rules are not applicable in Turkey and the Communiqué naturally does not impose any obligations in this respect. However, compliance with Sharia rules may be important especially for foreign investors. As known, there is no uniformity or written set of rules regarding the interpretation of Sharia rules. Different issuers may adhere to different interpretations, some of them get consulting from experts in the area, whereas others follow the interpretations of the Islamic Financial Services Board and Accounting and Auditing Organizations for Islamic Financial Institutions. These issues may be significant in the issuance of lease certificates based on businesses which include elements both compliant and non-compliant with Sharia rules. There are currently four participation banks in Turkey all of which are member of TKBB, the association for participation banking which acts as a superior authority setting out guidelines. According to the website of the TKBB, goods and services that are allowed according to Sharia may be subject to Islamic Financing even if the provider also engages in prohibited activities. However, there is no clarity as to how this rule may be applied in case of lease certificate issuances.
Depreciation of the assets may also pose a risk. The Communiqué sets forth that the value of the issued lease certificates shall not exceed 90% of the total value of the relevant asset or rights for ownership based lease certificates.
Tax Incentives
ALCs and investors in sukuk market enjoy numerous tax exemptions.
Proceeds from transfer of assets and rights to ALCs and the holders of the lease certificates are tax-exempt. The same rule applies to VAT as Value Added Tax Law No. 3065 exempts the delivery of lease certificates issued by ALCs, the transfer of assets to the ALC and their subsequent lease and transfer back to the originating entity. Documents and certificates executed for the purposes of lease, transfer and pledge transactions regarding relevant assets or rights for the purposes of lease certificates also enjoy stamp tax-exemption. The transfer, lease and pledge transactions are exempt from duties. Withholding tax percentages vary from 10% of the lease proceeds obtained from lease certificates with a term of up to 3 years, to 3% for those with a term of 3 to 5 years. Government issued lease certificates (sovereign sukuk) as well as privately issued lease certificates with a term of over 5 yearsarenot subject to withholding tax. For proceeds obtained from lease certificate trading and coupon payments; non-resident and resident stock corporations' are free of withholding tax whereas non-stock corporations, other institutional investors and real persons are subject to a withholding of 10% on income. The income obtained from lease certificates issued abroad is also exempt from tax.
On the other hand, earnings from the acquisition and disposition of lease certificates issued domestically in Turkish Lira through promise to sell or buy back and earnings from the sale before term of lease certificates are subject to banking and insurance transaction tax in the amount of 1% for issuers.
Conclusion
Islamic Finance and interest free finance instruments are increasing their popularity globally as part of an effort to attract Gulf investors. And Turkey's legislation and practice on the matter is rapidly evolving with its foreign investor friendly and Islam espousing political and economic environment. Thus, the favorable tax regime for issuers, investors and the finance institutions offers broad opportunities in Sukuk market of Turkey.
(Mondaq / 17 July 2014)
---Alfalah Consulting - Kuala Lumpur: www.alfalahconsulting.com
Islamic Investment Malaysia: www.islamic-invest-malaysia.com
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